LATEST NEWS: Between two insurances, one right: full compensation for the injured party

Work accidents that are also road accidents continue to raise a central practical question: is it possible to combine work accident insurance and motor insurance claims?

The answer, which is gaining ground in the courts, is clear: there is no such thing as "the same thing twice", but there is complementarity in order to achieve full compensation for the damage, and this clarification is decisive for claimants and insurers.

The system for accidents at work (Law no. 98/2009, LAT) stipulates that when the road accident was caused by a third party, the injured party can claim from the third party, under the general terms of civil liability, what the labour system does not cover - as is the case, for example, with non-pecuniary damage, which is compensated under civil motor liability - and then ensure that the accounts are settled between the insurers responsible.

In practice, this avoids double payment for the same damage, but it does not prevent the addition of different instalments to compensate for different damages. This is the logic of Article 17 of the LAT and its articulation with compulsory motor insurance (Decree-Law 291/2007).

The higher courts have reiterated that labour benefits, aimed at loss of earning capacity, do not exonerate the civil liability party, in most cases the car insurance company, from paying damages recoverable under civil liability.

The truth is that whenever there are "plans" of damage that do not overlap, compensation can coexist without illegitimately enriching the injured party.

The motor insurer cannot refuse to pay on the grounds that the injured party has already received compensation as a result of the accident at work, as these are different spheres of compensation and only the amount that actually covers the same damage should be deducted.

On a practical level, what often happens is that when faced with situations of this nature, motor insurers tend to immediately assume that the so-called "biological damage" has already been fully compensated for in the work accident case, refusing any further payment.

process, refusing any further payment. This position, although common, does not correspond to the applicable legal framework.

The essential thing is to understand once and for all the autonomy of the so-called "biological damage" as damage to the physical-psychic integrity that translates into a functional limitation and has repercussions on earning capacity, but also in greater hardship and effort in leisure activities and family and private life, i.e. in the injured person's life outside work.

The work accident insurer pays the legally prescribed benefits, such as medical assistance and compensation or pensions for temporary or permanent incapacity and, in the event of death, the benefits due, which are focused on the loss of working and earning capacity. The motor insurer, on the other hand, must reimburse, in general terms, anything that is not included therein, in particular non-pecuniary damage and other pecuniary damage that is not fully covered, including the extra-work aspect of biological damage and any loss of income differentials.

The risk is clear: a claimant who is unaware that compensation can be complementary - and not necessarily exclusive - can accept this refusal without question, and thus be deprived of full compensation for the damage actually suffered.

The law guarantees the injured person access to full compensation, which covers all the damage actually suffered, regardless of the source of the benefits.

Motor insurers cannot avoid their responsibilities on the grounds that occupational accident insurance has already intervened, when they are dealing with different damages or damages that have not been fully compensated. It is therefore up to the injured party, who deserves full and comprehensive compensation, to demand what they are owed.